In the evolutionary process of anti-discrimination law the fight against racial and ethnic discrimination constitutes only one step on a whole path, because of the before-mentioned intersectionality of different forms of discrimiantion. The first step of this path, meaning the first group that was acknowledged as being a victim, were women. Because women constitute half of the electorate and potential workforce in the EU, this subject appeared first on the supranational political agenda. Racial and ethnic minorities, one of them being the Romanies who are the primary concern of this thesis, can be considered as the next groups admittedly being victims of discrimination. However, many other forms of discrimination exist, like discrimination against the elderly, the handicapped and homosexuals. The last could be expected as the next big step on the path of anti-discrimination law, and should be shortly commented on in this chapter, in order to stress and illustrate the evolutionary broad character of anti-discrimination legislation.
The topic of discrimination against homosexuals is not new. In 1976 the total prohibition of sexual intercourse between two males was ruled to be a breach of ECHR Article 8. In an ensuing debate in the European Parliament about a resolution on the topic, significant opposition came from Christian Democrats and UK Conservatives (Mark Bell 2004, p. 92). The “Resolution on Sexual Discrimination at the Workplace“, OJ 1984 C 104/46-48, passed anyways, and called on proposals to prevent discrimination against homosexuals “[…] with regard to access to employment and dismissals”.
The perception of homosexual’s maltreatment as discrimination is a rather recent phenomenon. The first adoption of an anti-discrimination provision by a Member State of the EU appeared as late as 1985 (c.f. R. Lalement 1998, p. 46).
Also, the European Parliament started a debate about sexual orientation discrimination in the 1980’s. As late as 1998 the European Court of Justice stated in Case C-249/96 Grant v. South-West Trains, that European law did not cover sexual orientation discrimination. The very slow development pace of this discrimination field can probably be ascribed to great differences in the Member States’ cultural, moral and religious beliefs.
Seite 53 von 107 Shortly after the implementation of the Racial Equality Directive, the so-called Framework Directive (c.f. Council Directive 2000/78/EC of 27 November 2000), which forbids discrimination on grounds of religion and belief, age, disability and sexual orientation, was adopted. It took on most of the former’s key definitions and features, e.g. of direct and indirect discrimination and harassment (c.f. Mark Bell 2004, p. 113).
However, the Framework Directive falls short of some of the Racial Equality Directive’s strong points. First, it only applies to employment. Second, there is no claim for the establishment of a body for the promotion of equal treatment. Third, in some cases the Directive requires a plaintiff to prove his or her sexual orientation, which creates an obvious conflict with privacy rights. Fourth and most importantly, Article 2(5) of the Framework Directive provides an opportunity for “open-ended justification for any form of discrimination” (Mark Bell 2004, p. 115). It states that
“[this] Directive shall be without prejudice to measures laid down by law which, in a democratic society, are necessary for public security, for maintenance of public order, and the prevention of criminal offences, for health protection and for the protection of the rights and freedoms of others”.
As a result of these lines, the Directive is used by some member states as a justification for restrictions on homosexuals to express their sexual orientation in armed forces (P. Skidmore 2001, p. 130).
Sexual orientation does not only conflict with conservative norms, there is also very little data about the repercussions of sexual orientation discrimination on Europe’s free market. Many homosexuals have the ability to avoid discrimination by concealment (although the question must be asked to what extent such a concealment strategy has a negative effect on the individual’s mental well-being).
Hence, it never appeared as a major point on the public policy agenda of the political and economic elite. At this point in time, the effective implementation of anti-discrimination law regarding sexual orientation anti-discrimination seems to be a much more distant than in the case of anti-discrimination law against racial and ethnic discrimination.
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3.2 The Impact of Contemporary Anti-Discrimination Law on anti-Gypsy Discrimination and Romani Social Exclusion
In order to evaluate the efficiency of a certain piece of legislation it is necessary to define tangible criteria. In this context, it helps to differentiate between the outcome and output. The output is synonymous with the factual results of political decisions. The outcome, on the other hand, is the answer to the question what the political agents actually achieved. The problem is, that outcomes are not only the result of particular outputs, but also influenced by many other, possibly partially unknown factors (c.f. Sonja Blum/Klaus Schubert 2009, p. 127). If these other factors can be identified during the evaluation phase, it can contribute to the future improvement of the policy. In this chapter, the goal is not to confirm the output in the form of EU anti-discrimination legislation. Far more important, it is an evaluation of the practical outcome of EU discrimination law; in other words the impact on anti-Gypsy discrimination and Romani exclusion.
The impact of EU anti-discrimination law will be revealed by a qualitative analysis of academic publications and reports that deal with the subject of discrimination and social exclusion of Romani people in the EU, which were published after the implementation of the 2000 Racial Equality Directive. Among the literature examined will be studies and publications from the European Union organs such as the Commission, Council, and the European Union Agency for Fundamental Rights, and international organizations such as Amnesty International, and publications by organs under the banner of the United Nations. In addition, case rulings of the European Court of Human Rights are considered, because the 2000 Racial Equality Directive explicitly refers to the European Convention of Human Rights for a to be respected source in the field of anti-discrimination policy and law (c.f. chapter 3.2.1).
Several indicators have to be chosen, in order to manifest a change in discrimination against Romani people. The Directive extends the EU’s competence to the areas of health, education and housing, which are traditionally strongholds of national sovereignty (Mark Bell 2004, p. 82). Hence, it is necessary to examine whether discrimination against Romani people improved in the areas of health,
Seite 55 von 107 education, services and housing. In addition, it has to be considered that the history of anti-Gypsy discrimination is rife with the expulsion and forced displacement of Romani people that led to great migration movements. EU anti-discrimination law capable of counteracting sufficiently against anti-Gypsy discrimination has to prevent such practices, especially by the states. Possibly the most decisive factor is employment, which is also closely related to the subject of education. The definition of the indicators, and what change should be expected in the respective areas, is the subject of the next chapter.
If anti-discrimination law is to be called efficient, there has to be some tangible change occurred over the last decade. If no improvement can be detected in the respected fields of the indicators, it can be concluded that the anti-discrimination law is inefficient. If improvement can be assessed, then the author assumes that the 2000 Racial Equality Directive has probably had a positive impact, because of the absence of other decisive actors that could have contributed to a large scale change.
There are three major problems that come with this methodological approach.
The first problem is that other factors might have contributed to the improvement of measurable Romani social inclusion and are being neglected. In the case other factors have been the decisive element of change in the field of anti-Gypsy discrimination and the social exclusion of Romani people, the results of this thesis will have to be revised. However, to this point the author is unaware of any social projects that are not associated to the demands of the 2000 Racial Equality Directive and big enough to bring about large scale change in whole countries. In addition, the author of this thesis hopes that the method of qualitative analysis of reports, studies and secondary literature will give insight to the question about the origin of possible positive change in the respective fields of the indicators.
The second problem is that in the different Member States of the EU there have always been different national legislation regimes. This did not change with the implementation of the 2000 Racial Equality Directive, because of the very nature of Directives as provisions, which come into effect only after they were converted into national law. In addition, many EU Member States joined the EU only years after the Racial Equality Directive was implemented. These circumstances make an examination and assessment of EU anti-discrimination law a complex task.
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However, EU anti-discrimination law is only as efficient as its weakest link. As a result, the method to examine the efficiency of EU anti-discrimination law will not follow the structure of particular countries, but rather the most obvious examples of racial discrimination that were found in secondary literature and academic reports.
The author of this thesis believes that if EU anti-discrimination law is revealed to have no impact in one Member State of the EU, then possible positive impacts in other countries are the result of national circumstances and motivations. Hence, the positive effect cannot be inferred from EU law, which renders it as inefficient.
The third problem is that Romani people often do not report crimes committed against them, because they fear that any evidence might be used to their disadvantage. Furthermore, police often neglect to patrol areas where great numbers of Romanies live, which leads to a deficiency of their security. In the Czech Republic it took until 1998 to implement a law that instructed the police to train the recognition of racially motivated crimes (c.f. Rick Fawn 2001, p. 1199). The mistrust of Romanies makes it generally very hard to measure Romani discrimination in quantitative numbers, which tend to be very imprecise. As a result, the indicators will be analyzed qualitatively, with quantitative numbers only contributing in those cases that they appear to be more accurate.
3.2.1 The Derivation of the Indicators from the 2000 Racial Equality